Francisco DiMartino v. Mark Richens, et al.

The defendants, Mark Richens, Kenneth
J. Robert, Robert Carterud and the department of transportation
of the state of Connecticut (department),
appeal1 from the judgment of the trial court rendered
for the plaintiff, Francisco DiMartino, on: (1) a jury
verdict in favor of the plaintiff for the alleged violation
of 42 U.S.C. § 1983,2 concerning his rights to freedom
of speech and equal protection of the laws, as guaranteed
by the first and fourteenth amendments to the
United States constitution; and (2) the trial court's findings
that the defendants had violated General Statutes
§ 31-51q,3 providing that an employer will be liable for
discipline or discharge of an employee on account of the employee's exercise of certain constitutional rights.
On appeal, the defendants claim that: (1) the plaintiff
failed to establish a violation of his right to freedom
of speech under the first amendment; (2) there was
insufficient evidence to support the jury's finding that
the plaintiff's right to equal protection was violated; (3)
the court improperly found that the defendants were
not entitled to qualified immunity; and (4) the jury's
award of punitive damages against Robert was both
unsupported by evidence and inconsistent with its
determination that he was not liable for compensatory
damages.4 We disagree with the defendants' claims and,
accordingly, we affirm the judgment of the trial court.

The plaintiff is a former employee of the department
whom the defendants had transferred and demoted
after he had cooperated with the state police in a criminal
investigation of several fellow employees, including
Carterud. The plaintiff brought this action under 42
U.S.C. § 1983 and § 31-51q, alleging that the defendants,
acting under color of state law,5 had deprived him of
his constitutional rights to freedom of speech and equal
protection of the laws, as guaranteed by the first and
fourteenth amendments to the United States constitution.
The defendants denied these allegations, and the
action proceeded to trial. The claims under 42 U.S.C.
§ 1983 were tried to the jury,6 and the claim under § 31-
51q was tried to the court. The jury returned a verdict
in favor of the plaintiff under 42 U.S.C. § 1983 and the
trial court rendered judgment on the verdict. The court
further found for the plaintiff under § 31-51q. This
appeal followed.

The jury reasonably could have found the following
facts. Prior to the events giving rise to this action, the
plaintiff had been employed as a carpentry supervisor
at Bradley International Airport (airport), a state-owned
and operated facility. In late 1997, the plaintiff was
relocated to a new office within terminal B of the airport.
The plaintiff's new office abutted a public area
of terminal B, including a baggage claim and a men's
bathroom. The office was separated from that public
area by a single locked door, through which the plaintiff,
and only the plaintiff, was authorized to enter his office.
The opposite side of the plaintiff's office abutted a workshop
that led to a high security area of the airport,
known as the ‘‘airport operations area'' (operations
area). A single door, which could be opened from inside
the office without a key, was all that separated the
plaintiff's office from the workshop and the operations
area. In other words, if someone gained access to the
plaintiff's office through the external door from the
public area, that person could pass freely through
another door to the workshop and the operations area.

The operations area is a location where commercial
airline jets refuel and load and unload baggage for
national and international flights. This is a highly secured area of the airport because commercial airline
jets are vulnerable targets for acts of terrorism. All
employees authorized to work in or around the operations
area, including the plaintiff, received specialized
security training and were regularly tested in security
protocol. The employees who worked in the operations
area were responsible for observing the grounds and
reporting the presence of any suspicious packages or
persons. In addition, employees were required to prevent
other persons from following them through
secured doors. Federal Aviation Administration agents
and plainclothes police officers posing as unauthorized
persons would test the employees' compliance with
these security rules by attempting to follow employees
through secured doors or loitering about the operations
area, and observing the employees' reactions. These
security measures reflected the importance of maintaining
a high level of security in the operations area
of the airport, so as to ensure that no malfeasance
would place a flight at risk.7

The security concerns related to the plaintiff's new
office did not end with its location, namely, between
both a public area and the highly secure operations
area. In addition, the plaintiff's office housed a key bank
containing dozens of duplicate keys, which, if taken,
would allow access to several secure areas of the airport.
These areas included the airport personnel offices,
the security offices and the operations area. Unauthorized
use of these keys would have posed serious risks
both to airport security and public safety. The airport
security division promulgated strict rules governing key
issuance and access to the key bank; the security division
did not consider compliance with these rules to
be optional. The plaintiff was responsible for maintaining
the integrity of the key bank and he was not
authorized unilaterally to issue a key to an unauthorized
person, or to ignore another person's unauthorized
removal of keys from the key bank. Rather, he was
authorized to issue a key from the key bank only when
directed to do so by Lisa Fazzino, an officer from the
airport's security division. Before any key would be
issued, it had to be encoded and labeled, and a record
had to be made of the recipient and the areas to which
he or she would be permitted access so that access to
secure areas of the airport could be monitored and controlled.

In summary, controlling access to the plaintiff's office
was critical to airport security and general public safety
for two major reasons. First, the plaintiff's office was
a potential conduit from a public area of the airport,
near the baggage claim of terminal B, to a highly secure
area of the airport, the operations area, where commercial
airliners refueled and loaded and unloaded baggage.
Second, the plaintiff's office contained the key bank,
which held several high security keys to restricted areas
of the airport, including personnel offices, the main security office and the operations area.

The plaintiff was the only person who was issued a
key to his office. If another employee needed a key
from the key bank, the proper procedure was to contact
the plaintiff, who would then consult Fazzino, who
would then determine whether to issue such a key
through the plaintiff. The proper procedure was not,
by contrast, for someone, even another employee, simply
to enter the plaintiff's office and open the key bank.

Soon after moving into his new office, the plaintiff
suspected that someone had been entering his office,
because certain items were out of order or missing.
The plaintiff examined the two doors to his office and
noticed marks near the handles and latches of the doors
and along the doorjambs. This indicated to the plaintiff,
a skilled carpentry supervisor, that someone might have
gained entry to the office by prying the doors open.
The plaintiff reinforced the doors with striker plates in
order to prevent anyone from prying the doors open
again. In addition, the plaintiff painted over the existing
pry marks in order to determine whether someone was
currently attempting to gain entry to the office forcibly.8

Within two weeks of taking these measures, the plaintiff
noticed fresh pry marks on both of the doors to
his office. The plaintiff was unsure, however, whether
anyone had gained entry into his office. In order to
determine whether someone was, in fact, breaking into
his office, and, if so, to determine which of the doors
was being opened, the plaintiff began to set objects
against the doors when he locked up and left his office.
He would set these objects in such a way that they
would fall if someone opened the doors, but would
remain undisturbed if someone merely tried the doorknobs
or shook the doors.

The objects placed against the doors remained undisturbed
for several weeks. On Friday evening, December
5, 1997, the plaintiff locked his office and placed the
objects against the doors, in accordance with his usual
routine. When the plaintiff returned to his office on the
following Monday, he noticed that the plastic object
that he had placed on the hinge of one of the doors
had fallen off, indicating that someone had broken into
his office over the weekend. The plaintiff immediately
noticed new pry marks on the door, the wall and the
doorjamb, which had been torn away from the door.
Upon entering his office, the plaintiff checked the other
door, leading to the operations area, and noticed that
the metal object that he had placed against that door
had fallen, indicating that someone had breached that
door as well.

The plaintiff was extremely concerned about the airport's
security. This was because both the key bank
and the operations area, where flights were vulnerable
to attack or sabotage while loading, unloading and fueling, had been breached by the person or persons who
had broken into his office.

The marks that the plaintiff previously had noticed
on the other side of the door to the operations area
indicated to the plaintiff that an inside employee might
be responsible. Not knowing whom to trust, the plaintiff
chose not report the incident to Carterud and Richens,
who were his immediate supervisors. Instead, the plaintiff
reported the incident directly to Robert, who then
held the title of airport administrator, which was the
highest managerial position at the airport. As he testified,
the plaintiff was extremely concerned about ‘‘the
possibility of an . . . employee of the state or someone
[else] . . . coming through the secured area.'' Thus, he
‘‘made the decision to go right to . . . Robert.'' The
plaintiff arranged a meeting with Robert and reported
the incident to him, relating his concerns about the
airport's security. As the plaintiff testified: ‘‘[My] concerns
were that if somebody was breaking into myoffice
and if it was somebody from the public area who did
not work at the airport, they could very easily come
into the office and have access out onto the [operations
area] which is a highly secured area. [Such a person
could] [a]lso possibly grab some keys to doors around the airport and my concern was [that] . . . it was
somebody who worked on the airport premises maybe
coming in and tampering with my door and getting into
the area and possibly getting some keys.'' Robert took
the plaintiff's statement seriously, and shared his concerns
about airport security. Robert went to the plaintiff's
office and examined its condition, noting that the
pry marks on the doors corroborated the plaintiff's
statement. Robert then asked the plaintiff to assist him
in reporting the incident to the state police, to which
the plaintiff agreed.

The state police maintained a station at the airport,
in the same building as the plaintiff's office. The plaintiff
and Robert went to the station and reported the incident
to Sergeant Brian Kennedy. The plaintiff gave substantially
the same statement to the police that he had given
to Robert. An officer then accompanied the plaintiff
and Robert to the plaintiff's office to investigate. After
corroborating the physical signs of the break-in, they
returned to the station, where the plaintiff signed a
written statement describing the factual circumstances
of the incident.

The police decided that the next logical step would
be video surveillance of the plaintiff's office. Robert
agreed, and told the plaintiff to cooperate with the state
police in every way to aid in their investigation.

The police installed a hidden video camera in the
plaintiff's office. Each day, they replaced and reviewed
a twenty-four hour videotape to determine whether it
revealed any activity. The police instructed the plaintiff
to tell no one about the investigation, explaining that there would be a greater risk that the person or persons
responsible would learn of the investigation, and avoid
future detection and responsibility for their acts.

For several weeks, the video surveillance revealed
no activity in the plaintiff's office. In late January, 1998,
the plaintiff took several days of sick leave to recover
from a medical procedure. Before leaving, the plaintiff
surrendered one of the keys to his office to Carterud,
in order to allow access to the key bank in the event
that the security division were to authorize the issuance
of a key to an employee.

The video surveillance revealed unusual activity in
the plaintiff's office during his leave of absence. People
were entering the plaintiff's office with paper bags and
searching his desk, his file cabinet and the key bank.
As they searched the plaintiff's belongings and the key
bank, these people removed several items, placing them
in the paper bags. The police attempted to contact the
plaintiff, but learned that he was away on sick leave.
Upon his return, the police asked the plaintiff to view
a videotape of the activity in his office and to identify
any person that he recognized. The police also asked
the plaintiff to explain, if he could, why the people
depicted on the tape were engaged in the activities
displayed. The plaintiff recognized all of the persons
entering his office as his fellow employees, including
Carterud, but the plaintiff was unable fully to explain
what they were doing, or why. The plaintiff did offer
the suggestion that they might have been removing supplies,
but indicated that the proper procedure for
obtaining supplies was to submit a ‘‘stores requisition,''
and that his office did not contain supplies for general
use. Moreover, the plaintiff stated that the only reason
someone would need to gain access to his office would be to obtain a key from the key bank, at the direction
of the security division. This was the sole reason that
the plaintiff had given his key to Carterud. Some of the
employees' activities could not be explained as removing
supplies or obtaining keys. For example, one of
the employees who searched the plaintiff's desk was a
union representative, who had no need to obtain construction
supplies.

The police asked the plaintiff to examine his office.
Upon entering, the plaintiff immediately noticed that
someone had ‘‘gone through'' his entire office, including
the key bank. The key bank had been left unlocked by
the person or persons who had entered it. The police
asked the plaintiff to sign another written statement,
containing each of these facts, and the plaintiff complied.
In that statement, the plaintiff stressed his concerns
about maintaining the security of the key bank,
to safeguard airport security.

The police acted quickly on the information and
located each of the persons identified on the videotape
and questioned them about their activities in the plaintiff's office. The police questioned Carterud at his home
on Sunday. Carterud was angered by the encounter.
Carterud directed his anger at the plaintiff, and speculated
that the plaintiff had been ‘‘setting [him] up
. . . .'' When Richens learned of Carterud's anger
toward the plaintiff, he became angered as well because
he was ‘‘left out of the loop'' and surprised by the investigation.
Richens and Carterud soon met and planned to
take action against the plaintiff.

Richens and Carterud then spoke with Robert and
obtained his direct authorization to terminate all of the
plaintiff's supervisory powers and responsibilities. In a
letter formalizing that action, the defendants stated that
there was a high risk of confrontations between the
plaintiff and angered workers, necessitating the termination
of the plaintiff's supervisory powers over them,
and his removal from their vicinity. The defendants
explained to the plaintiff that the term ‘‘confrontations,''
as used in the letter, was a euphemism for physical
violence, which, they stated, was likely if the plaintiff
were allowed to remain in his supervisory position.
In a subsequent letter explaining the transfer to the
personnel division of the department, Richens reiterated
their view that the plaintiff's continued presence
‘‘could lead to . . . violence . . . .''

The defendants removed all of the plaintiff's powers,
privileges and responsibilities. They confiscated all of
his equipment, tools and supplies, including his truck,
telephone and keys to various areas of the airport. The
defendants terminated the plaintiff's budget for administering
projects, and ordered the supply shop to refuse
to honor any of the plaintiff's requests for supplies. For
two months after the defendants' actions, the plaintiff
essentially had no job responsibilities whatsoever, and
he was left to wander the airport aimlessly. Despite
the defendants' purported concern for violence flowing
from contact with employees in the area, the defendants
did not change the plaintiff's work location. Thus, the
plaintiff continued to be in regular contact with angry,
and potentially violent employees. Additionally, the
plaintiff endured degradation at the hands of other
employees, who laughed or smirked at him in passing.

After this two month period, Robert reassigned the
plaintiff to assist a handyman. Robert asked the plaintiff
if he would accept such a reassignment. When the plaintiff
refused, Robert nonetheless transferred him to
assist the handyman. In this capacity, the plaintiff traveled
between other, smaller airports owned by the state
and performed menial, odd jobs, unbefitting his official
designation as a supervisor. Robert placed the plaintiff
‘‘under the direct supervision of [the handyman],'' and
ordered the plaintiff to ‘‘report each work day at your
regular hours to [the handyman] . . . . You will share
[his] office,'' which was located in the same building as
the plaintiff's prior workplace. As a result, the plaintiff continued to have contact with the purportedly violent
employees, who continued to harass him. The defendants
made no effort to monitor or control this contact
and behavior. Initially, the plaintiff had a telephone in
his office, which he used to assist the handyman by
making telephone calls to arrange work. Within a few
weeks, however, a telephone repairman informed the
plaintiff that his telephone and voice messaging were
to be removed immediately, under the order of an
unidentified authority figure.9

The menial jobs in which the plaintiff assisted were
so trivial that personnel at the remote airports found his
presence confusing, and frequently asked the plaintiff
embarrassing questions, such as: ‘‘[W]hat did you do to
deserve to be out here with [the handyman].'' The area
personnel found the plaintiff's presence to be confusing
because there was insufficient work for the handyman
alone, and neither the handyman nor the plaintiff was
provided with a budget to undertake more projects.10
In one episode, the plaintiff and the handyman were
asked to replace light bulbs at one of the small, remote
airports, but because they had no budget to purchase
replacement bulbs, they resorted to walking around
the airport and asking various employees whether they
could take light bulbs that were in use. The plaintiff
continued to complain to Robert about the transfer and
the nature of his work with the handyman, but Robert
was unresponsive.

Ultimately, Richens and Carterud decided to transfer
the plaintiff back to the airport after discovering that
there was insufficient funding for the assistant handyman
job. The defendants11 did not, however, restore the
plaintiff to his position as a supervisor. Instead, the
defendants placed the plaintiff under the direct supervision
of the building superintendent (superintendent),
who, among other things, was in charge of the janitorial
and housekeeping services for the airport. As the defendants
were aware, the superintendent harbored a longstanding
personal conflict with the plaintiff.12 Nonetheless,
the defendants asserted that the placement would
serve to prevent conflict, based on their previous rationale
that the plaintiff's supervisory authority would not
be tolerated by certain potentially violent employees.
The plaintiff asked to be protected from the potentially
violent employees, or at least to be made aware of
who they were so that he could protect himself. The
defendants refused, explaining that if something happened,
they would deal with it later. Richens also explicitly
ordered the superintendent to evaluate the
plaintiff's job performance in order to determine his
future ‘‘service rating'' with the department. The plaintiff
still rightfully held the title of carpentry supervisor,
a position at least equivalent in rank to that of the
superintendent, which made supervision by the superintendent
improper. Tensions were increased when the
defendants assigned the plaintiff to work in a cramped office with the superintendent. The plaintiff's desk was
wedged in front of the aisle facing the door to the office.
The layout of the office made any entrance into the
office ‘‘complicated,'' and the superintendent often
needed to meet with supplier's representatives in the
office.

The superintendent complained to the defendants
regularly about the plaintiff's inconvenient location in
his office. No one had ever been placed within the
superintendent's office before and, based on the limited
space, the placement was inappropriate. After one
month of frequent complaints, the defendants relented,
and moved the plaintiff's workplace into a storage
closet, filled with carts, supplies and garbage, which
was piled onto the floor. The storage closet was located
off of the carpenter's workshop - the very workshop
that held the ostensibly hostile employees that the
defendants had claimed should not be in contact with
the plaintiff. The plaintiff was forced, due to the configuration
of the office and the key access he was given, to
access his office by exiting the building and reentering
through the workshop, resulting in frequent contact
with the hostile employees. The plaintiff objected to
this relocation, but the superintendent stated that he
had no ability to prevent it because ‘‘[a] decision was
made and that is where [he] was going to go.''

After numerous requests, the superintendent finally
managed to procure for the plaintiff a key to an inside
corridor leading to the supply closet where he was
working. Despite the convenience that the key would
supply, the plaintiff refused to accept it, because the
key was stamped with the following code: ‘‘ASS 1.''
Based on the encoding system, this stamp was not a
proper code. When the superintendent and the plaintiff
complained to Carterud, he laughed at them, and
offered an unlikely explanation.13

The plaintiff's duties changed under the supervision
of the superintendent. The superintendent placed the
plaintiff in charge of hand delivering toilet paper to
all areas of the airport, including locations where the
plaintiff's purportedly hostile former employees might
be located, and might be prone to continue to humiliate
him. The delivery duties assigned to the plaintiff had
been assigned previously only to inmates from Somers
correctional institution, whom the airport employed
while they remained in custody for criminal convictions.

Despite the turbulent history of the relationship
between the superintendent and the plaintiff, the superintendent
experienced a crisis of conscience concerning
the plaintiff's treatment at the hands of the
defendants. After their first meeting following the reassignment,
the superintendent took the plaintiff aside
and explained the circumstances to him. The superintendent
told the plaintiff that the defendants had confessed to him that they sought to ‘‘get rid of'' the plaintiff
and that they thought that, based on the superintendent's
personal conflict with the plaintiff, the superintendent
would be the ideal person to degrade and goad
the plaintiff, causing him to lose control and react
adversely to his working conditions, thereby manufacturing
cause to terminate him. The superintendent did
not approve of the defendants' actions and stressed to
the plaintiff that he had ‘‘no part in [it] . . . .'' The
plaintiff asked the superintendent to repeat the defendants'
confession to a union representative, and the
superintendent did so.

Again, the plaintiff vigorously objected to reassignment,
but the defendants took no action to restore his
privileges and responsibilities as a carpentry supervisor.
Finally, the plaintiff resorted to filing grievances
with the union to challenge his involuntary transfers.
The grievances were sustained in short opinions14 and
the defendants were ordered to reinstate the plaintiff's
privileges and responsibilities as a carpentry
supervisor.

Throughout the entire relevant period, the defendants
took no action legitimately to alter the plaintiff's official
designation as a carpentry supervisor, because such
action would have required formalized reasoning based
upon an evaluation of the plaintiff's abilities as a supervisor.
The plaintiff's written performance evaluations
as a supervisor, authored by the defendants, were consistently
superlative. The authors of the grievance opinions
determined that the defendants ‘‘essentially
gut[ted]'' the plaintiff's job without justification, whatever
the title he still officially held. Even in the face of
authoritative orders from the state labor commissioner
to restore the plaintiff to his official position, however,
the defendants continued to refuse to do so.

The defendants continued to take no action to
address the asserted potential violence of the other
employees, despite requests by the plaintiff, and despite
the defendants' assertion that potential violence was
the primary concern motivating their actions against
the plaintiff. As a result of the defendants' actions, the
plaintiff suffered from severe anxiety, depression and
associated physical symptoms, requiring medical therapy
from psychiatric professionals. The plaintiff suffered
from heart disease and his cardiologist was
extremely concerned about the impact of the severe
stress he was being subjected to in the workplace. Ultimately,
the plaintiff's hollow victory in the union grievances
overcast his plans to resume his rightful position
and the plaintiff filed for early retirement, suffering
financial penalties as a result.

The plaintiff then filed this action for damages under
§ 31-51q and 42 U.S.C. § 1983, alleging that the defendants,
acting under color of law, had deprived him of
his rights to freedom of speech and equal protection. See footnotes 2 and 3 of this opinion for the text of 42
U.S.C. § 1983 and § 31-51q. At the close of all the evidence,
the defendants moved for a directed verdict in
their favor and the trial court denied that motion in an
oral ruling.

Prior to the jury's deliberations, the plaintiff moved
to have all of the factual issues related to the § 31-51q
count resolved by the jury, rather than by the court.
The trial court orally denied that motion, indicating
that it would decide the issues involved in the § 31-
51q count.15 The plaintiff also moved for the court to
determine the protected status of the plaintiff's speech
under the first amendment. The defendants did not
object, and the court granted that motion ‘‘consistent
with the agreement of the parties.'' The court later determined
that the plaintiff's speech was protected.
Although the court found the issues related to the § 31-
51q count ‘‘for the plaintiff,'' the court did not make
any award of damages, costs or attorney's fees under
that count. See footnote 4 of this opinion.

The remaining factual issues related to the 42 U.S.C.
§ 1983 counts, and the amount of damages under those
counts were submitted to the jury. The jury returned a
verdict in favor of the plaintiff in the amount of $300,000
in general and punitive damages, and $125,009 in attorney's
fees and costs. The $300,000 in damages was composed
of $150,000 in general damages against Carterud
and Richens, and $150,000 in punitive damages against
Carterud, Richens and Robert. The jury answered specific
interrogatories16 in connection with the verdict,
including issues related to the protected status of the
plaintiff's speech. The interrogatories had been drafted
prior to the court's ruling that it would determine
whether the plaintiff's speech was protected under the
first amendment. The jury determined that Richens and
Carterud had been motivated substantially by the plaintiff's
speech on a matter of public concern when they
took action against the plaintiff. The jury also stated,
in response to the interrogatories, that each of the individual
defendants had violated the plaintiff's right to
equal protection based on ‘‘a malicious intent to violate
the plaintiff's rights or unlawfully injure him or . . . a
callous or reckless disregard of his rights.''

The defendants moved for remittitur and to set aside
the verdict, on essentially the same grounds raised in
their motion for a directed verdict. The trial court
denied those motions and rendered judgment in favor
of the plaintiff on: (1) the 42 U.S.C. § 1983 count, in
conformity with the jury verdict and interrogatories;
and (2) the § 31-51q count.

I.

The defendants first claim that the plaintiff failed to
establish a violation of his right to freedom of speech
under the first amendment to the United States constitution and, therefore, that the trial court improperly failed
to render judgment for them. The defendants do not
dispute the legal proposition that, as agents of a state
government, they may not retaliate against an
employee, such as the plaintiff, for exercising his right
to freedom of speech under the first amendment. Cf.
Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct. 1684,
75 L. Ed. 2d 708 (1983). Rather, the defendants argue
that the plaintiff's speech was not protected by the first
amendment for two reasons: (1) the plaintiff's speech
‘‘cannot be fairly characterized as constituting speech
on a matter of public concern''; id., 146; and (2) even
if the plaintiff's speech fairly could be characterized as
constituting speech on a matter of public concern, their
legitimate employment interest in taking action against
the plaintiff in reaction to his speech outweighed the
first amendment interest in his speech. See Pickering
v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731,
20 L. Ed. 2d 811 (1968). We address these arguments
in turn.

Before addressing these arguments, however, we set
forth the applicable standard of review. Ordinarily, a
jury or trial court's findings of fact are not to be overturned
on appeal unless they are clearly erroneous. ‘‘A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.''
(Internal quotation marks omitted.) Connecticut
National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d
101 (1997). Thus, we ordinarily review the findings of
fact made by the jury, in its verdict and specific interrogatories,
and by the trial court in its judgment, for
clear error.

In certain first amendment contexts, however, appellate
courts are bound to apply a de novo standard of
review. For example, in the context of government
employee speech, such as the present case, the ‘‘inquiry
into the protected status of . . . [that] speech is one
of law, not fact.'' Connick v. Myers, supra, 461 U.S.
148 n.7. As such, an appellate court is ‘‘compelled to
examine for [itself] the [government employee's] statements
in issue and the circumstances under which they
[are] made to see whether or not they . . . are of a
character which the principles of the First Amendment,
as adopted by the Due Process Clause of the Fourteenth
Amendment, protect.'' (Internal quotation marks omitted.)
Id., 150 n.10. ‘‘[I]n cases raising First Amendment
issues [the United States Supreme Court has] repeatedly
held that an appellate court has an obligation to ‘make
an independent examination of the whole record' in
order to make sure that ‘the judgment does not constitute
a forbidden intrusion on the field of free expression.'
New York Times Co. v. Sullivan, [376 U.S. 254,
284–86, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)]. See also NAACP v. Claiborne Hardware Co., 458 U.S. 886,
933–934 [102 S. Ct. 3409, 73 L. Ed. 2d 1215] (1982);
Greenbelt Cooperative Publishing Assn. v. Bresler, 398
U.S. 6, 11 [90 S. Ct. 1537, 26 L. Ed. 2d 6] (1970); St.
Amant v. Thompson, 390 U.S. 727, 732–733 [88 S. Ct.
1323, 20 L. Ed. 2d 262] (1968).'' Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 499, 104 S.
Ct. 1949, 80 L. Ed. 2d 502 (1984); see also Connick v.
Myers, supra, 150 n.10. This rule of ‘‘independent
review'' was forged in recognition that a ‘‘[c]ourt's duty
is not limited to the elaboration of constitutional principles
. . . [rather, an appellate court] must also in
proper cases review the evidence to make certain that
those principles have been constitutionally applied.''
(Internal quotation marks omitted.) Bose Corp. v. Consumers
Union of United States, Inc., supra, 508. Therefore,
even though, ordinarily, under both Practice Book
§ 60-5 and rule 52 (a) of the Federal Rules of Civil
Procedure, ‘‘[f]indings of fact . . . shall not be set aside
unless clearly erroneous, [appellate courts] are obliged
to make a fresh examination of crucial facts'' under the
rule of independent review. (Internal quotation marks
omitted.) Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, Inc., 515 U.S. 557, 567, 115
S. Ct. 2338, 132 L. Ed. 2d 487 (1995).

This rule of independent review has been applied by
the United States Supreme Court in other first amendment
contexts, aside from government employee
speech. See, e.g., Gentile v. State Bar of Nevada, 501
U.S. 1030, 1038–39, 111 S. Ct. 2720, 115 L. Ed. 2d 888
(1991) (attorney discipline for speech); Bose Corp. v.
Consumers Union of United States, Inc., supra, 466
U.S. 510–11 (‘‘‘actual malice' '' in libel action); Miller v.
California, 413 U.S. 15, 25, 93 S. Ct. 2607, 37 L. Ed. 2d
419 (1973) (obscenity). Furthermore, since Connick,
the Supreme Court has maintained the rule of independent
review in the specific first amendment context of
government employee speech. See Rankin v. McPherson,
483 U.S. 378, 385–86, 107 S. Ct. 2891, 97 L. Ed.
2d 315 (1987). Accordingly, the federal Circuit Courts,
including the Second Circuit Court of Appeals,17 have
followed the rule. See, e.g., Metropolitan Opera Assn.
v. Local 100 Hotel Employees & Restaurant Employees
International Union, 239 F.3d 172 (2d Cir. 2001); Commodity
Trend Service, Inc. v. Commodity Futures
Trading Commission, 149 F.3d 679, 686 (7th Cir. 1998);
United States v. Cutler, 58 F.3d 825, 834 (2d Cir. 1995);
Contemporary Mission, Inc. v. New York Times Co.,
842 F.2d 612, 622 (2d Cir. 1988); Tavoulareas v. Piro,
763 F.2d 1472, 1479–80 (D.C. Cir. 1985).

We note that in Brown v. K.N.D. Corp., 205 Conn.
8, 14, 529 A.2d 1292 (1987), we determined that the
independent review standard did not apply where ‘‘no
penalty [had been] imposed for the exercise of first
amendment rights . . . .'' We reasoned that ‘‘an appellate
court should have no authority under the guise of independent review to upset [such a] determination.''
Id. Brown involved a claim of ‘‘actual malice'' in a libel
action, not a claim by a government employee that he
had been retaliated against for his speech. Id., 9. To
the extent, however, that Brown may conflict with the
independent review of a trial court's findings regarding
the protected status of a government employee's
speech, mandated by Connick v. Myers, supra, 461 U.S.
150 n.10, we decline to follow it. The court in Connick
determined that independent review is mandatory,
without exception, in all appeals challenging a trial
court's finding as to the protected status of government
employee speech. Id. Thus, we must engage in a de
novo review of the trial court's findings under § 31-51q
and 42 U.S.C. § 1983, and the jury's findings under 42
U.S.C. § 1983, that the plaintiff's speech was protected
by the first amendment.

A

First, the defendants claim that the trial court should
have determined that the plaintiff's speech fairly could
not be characterized as constituting speech on a matter
of public concern, which is a prerequisite to claims by
government employees that their rights to free speech
have been infringed by their government employers.
See id., 142. Specifically, the defendants argue that the
plaintiff's speech exclusively addressed the security of
his own personal property, namely, his work space and
several personal items that he suspected had been taken
by someone who had broken into his office.18 Conversely,
the defendants argue that the plaintiff's speech
fairly cannot be characterized as involving a concern
for general airport security, which they concede would
be a matter of public concern. We are not persuaded.

It is by now well established that a state government
may not compel individuals to relinquish their first
amendment rights as a condition to obtaining government
employment. Harman v. New York, 140 F.3d 111,
117 (2d Cir. 1998); see also Pickering v. Board of Education,
supra, 391 U.S. 568 (court had ‘‘unequivocally
rejected'' that legal proposition in ‘‘numerous prior decisions'').
The prevailing view during the early 1950s was
exactly the reverse. Under that earlier view, government
employment was seen as a privilege, rather than a right,
and conditions to employment that interfered with
employees' freedom of speech generally were held to
be constitutional because the employees ‘‘are at liberty
to retain their beliefs and associations and go elsewhere.''
Adler v. Board of Education, 342 U.S. 485, 492,
72 S. Ct. 380, 96 L. Ed. 517 (1952). Justice Holmes
advanced that view in an early case written for the
Supreme Judicial Court of Massachusetts. See McAuliffe
v. Mayor of New Bedford, 155 Mass. 216, 220, 29
N.E. 517 (1892) (‘‘[t]he petitioner may have a constitutional
right to talk politics, but he has no constitutional
right to be a policeman''). With the abandonment of the ‘‘rights'' and ‘‘privileges'' distinction as a constitutional
doctrine, however, the United States Supreme Court
discontinued that approach. The court then recognized
that ‘‘if the government could deny a benefit to a person
because of his constitutionally protected speech . . .
his exercise of those freedoms would in effect be penalized
and inhibited.'' (Emphasis added.) Perry v. Sinderman,
408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d
570 (1972).

In Pickering v. Board of Education, supra, 391 U.S.
568, however, the court also recognized that a government
‘‘has interests as an employer in regulating the
speech of its employees that differ significantly from
those it possesses in connection with regulation of the
speech of the citizenry in general.'' The court then set
forth a general principle governing the constitutionality
of government restrictions on the speech of its employees:
in evaluating the constitutionality of government
restrictions on an employee's speech, a court must
‘‘arrive at a balance between the interests of the
[employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
it performs . . . .'' Id.

In Connick v. Myers, supra, 461 U.S. 150, the court
added a modification to the general ‘‘balancing'' test
promulgated in Pickering. Under Connick, if a government
employee's speech ‘‘cannot be fairly characterized
as constituting speech on a matter of public concern,
it is unnecessary . . . to scrutinize the reasons for [his
or] her discharge.'' Id., 146. The court reasoned that if
an employee's speech addresses matters of exclusively
private concern, the government interest in ‘‘latitude
[to manage] their offices, without intrusive oversight by
the judiciary''; id.; would outweigh the first amendment
interests in the speech, ‘‘absent the most unusual circumstances
. . . .'' Id., 147.

‘‘Whether an employee's speech addresses a matter
of public concern must be determined by the content,
form, and context of [the speech], as revealed by the
whole record.'' Id., 147–48. An employee's speech
addresses a matter of public concern when the speech
can ‘‘be fairly considered as relating to any matter of
political, social, or other concern to the community
. . . .'' Id., 146.

Our independent review of the record leads us to
the conclusion that the plaintiff's speech fairly can be
considered to relate to a matter of political and social
concern to the community. The record makes clear that,
when the plaintiff spoke to the police, he was concerned
about the security of the airport because both the key
bank and the operations area had become exposed to
someone who had broken into his office. After September
11, 2001, when the trial in this case took place, the
concept that airport security was a matter of political and social concern to the community could not be seriously
questioned. The evidence, including part 107 of
the Federal Aviation Regulations,19 which was distributed
to employees at the airport, unequivocally reflects
that concern. Commercial flights had been regular targets
for acts of terrorism for several decades; the potential
impact of a security breach on public safety and
national security was a matter of common knowledge.

Indeed, the defendants do not argue that airport security
is a matter of exclusively private concern. Instead,
the defendants challenge the finding that the plaintiff
was motivated by concern for airport security. The gravamen
of the defendants' argument is that, in his first
written statement to the police, the plaintiff reported,
among other things, that personal items were missing
from his office, and he did not explicitly state at that
time that he was concerned about airport security. The
defendants argue that these factors prove that the plaintiff's
concerns were exclusively personal, and did not
include any concern for airport security. For several
reasons, we find this argument unpersuasive.

First, in the very statement that the defendants cite,
the plaintiff did, in fact, mention his concerns about
the security of the key bank, which held dozens of high
security keys, which, if taken, would allow any person
who took them access to several secure areas of the
airport. These areas included the airport personnel
offices, the security offices and the operations area.
Unauthorized access to these keys would have posed
serious risks both to airport security and public safety.
In recognition of these dangers, the airport security
division promulgated strict rules governing access to
the key bank and key issuance. Second, the statement
mentions that both doors had been breached by an
intruder: the door to the public area, and the door that
led to the highly secure operations area. As discussed
previously, maintaining security in the operations area
is critical to airport and public safety because commercial
jets are located there, and vulnerable to malfeasance
as they prepare for flight. Third, in a later
statement, the plaintiff explicitly stated his concern for
airport safety after realizing that the key bank had been
breached by a person who had entered his office.20
Finally, even if the plaintiff had not stated explicitly his
concerns about airport security to the police in that
statement, we would not draw the inference suggested
by the defendants, namely, that the plaintiff's speech
had not been motivated by a concern for airport security.
The police statement in question was handwritten
by the police and signed by the plaintiff, as a reduction
of essential facts, designed to aid in an investigation.
The statement does not appear to serve as a platform
for voicing the plaintiff's thesis concerning the importance
of the investigation. More persuasive is the plaintiff's
testimony as to what his concerns were when
he spoke to the police: ‘‘[My] concerns were that if somebody was breaking into my office and if it was
somebody from the public area who did not work at
the airport, they could very easily come into the office
and have access out onto the [operations area] which
is a highly secured area. [Such a person could] [a]lso
possibly grab some keys to doors around the airport
and my concern was [that] if it was somebody who
worked on the airport premises maybe coming in and
tampering with my door and getting into the area and
possibly getting some keys.'' For these reasons, we
determine that the speech in question fairly can be
considered as relating to a matter of public concern.

B

Next, the defendants claim that, even if the plaintiff's
speech fairly could be characterized as constituting
speech on a matter of public concern, their legitimate
employment interest in taking action against the plaintiff
in reaction to his speech outweighed the first amendment
interest in his speech. See Pickering v. Board of
Education, supra, 391 U.S. 568. We disagree.

The defendants do not dispute that they were substantially
motivated by the plaintiff's speech when they
took action against him. Therefore, we proceed under
Pickering v. Board of Education, supra, 391 U.S. 568,
to ‘‘balance . . . the interests of the [plaintiff], as a
citizen, in commenting upon matters of public concern
and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs'' to
determine whether the plaintiff's speech is protected
by the first amendment. Board of Education v. Doyle,
429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977)
(protected expression must have been ‘‘ ‘substantial' ''
and ‘‘ ‘motivating' '' factor of state action to render that
action unconstitutional).

We begin with the first amendment interests associated
with the plaintiff's speech. As discussed previously,
the plaintiff's speech concerned a breakdown in security
at the airport. Someone had pried open a locked
door that prevented the public from entering the vulnerable
operations area of the airport. Furthermore, someone
had broken into the airport key bank, which held
dozens of keys to several secure areas of the airport,
including the security offices, the airport personnel
offices, and the operations area. It is difficult to overestimate
the political and social significance of this governmental
security failure, particularly in light of the
terrorist attacks on September 11, 2001. The first
amendment interest in encouraging, rather than suppressing,
the plaintiff's speech about this breakdown
in airport security is great.

By contrast, the state's interest in ‘‘promoting the
efficiency of [its] services'' by taking action against the
plaintiff for his speech about a critical breach of airport
security, is minimal. Pickering v. Board of Education, supra, 391 U.S. 568. The defendants argue that they had
an important interest in preventing disruption in the
workplace - by demoting and removing the plaintiff -
because other employees harbored intense hostility
toward the plaintiff as a result of his speech. The record
demonstrates, however, that this concern for disruption
was pretextual21 and highly unreasonable, and, therefore,
of minimal government interest. First, the defendants
took no action to address the purported hostility
of the other employees, which was the alleged source
of potential disruption. The plaintiff constantly
requested the simplest of measures from the defendants
to ameliorate that hostility, and his requests were consistently
denied. Perhaps the simplest request was for
the defendants to inform the ostensibly hostile employees
that the plaintiff had cooperated with the police
investigation because Robert had commanded him to
do so. This could have mitigated the perception that
the plaintiff had taken it upon himself to ‘‘set up'' the
employees implicated in the investigation, and reduced
the associated hostility. Furthermore, the defendants
took no action to counsel or otherwise address any of
the supposedly hostile employees about their unreasonable
anger toward the plaintiff. The state had promulgated
a ‘‘ ‘zero tolerance policy' '' for potential violence
in the workplace, which included mandatory training
and counseling for employees who threaten physical
violence. Despite this policy, the defendants did not
provide, or even suggest, counseling for the hostile
employees. Richens acknowledged that they could have
removed the hostile employees rather than the plaintiff,
yet the defendants simply concluded that the plaintiff
‘‘ha[d] to'' be removed. Also, the plaintiff asked to know
which employees were hostile toward him, so that he
could avoid them or otherwise protect himself, yet the
defendants refused, telling the plaintiff that ‘‘if an issue
arose [they would] deal with it.'' As discussed previously,
after demoting the plaintiff, the defendants nevertheless
reassigned him to areas where he came in
frequent contact with these purportedly violent employees.
Finally, the plaintiff asked that meetings be held
to address and resolve the hostility. The defendants
refused each of these requests.

supra, 391 U.S. 568. The defendants argue that they had
an important interest in preventing disruption in the
workplace - by demoting and removing the plaintiff -
because other employees harbored intense hostility
toward the plaintiff as a result of his speech. The record
demonstrates, however, that this concern for disruption
was pretextual21 and highly unreasonable, and, therefore,
of minimal government interest. First, the defendants
took no action to address the purported hostility
of the other employees, which was the alleged source
of potential disruption. The plaintiff constantly
requested the simplest of measures from the defendants
to ameliorate that hostility, and his requests were consistently
denied. Perhaps the simplest request was for
the defendants to inform the ostensibly hostile employees
that the plaintiff had cooperated with the police
investigation because Robert had commanded him to
do so. This could have mitigated the perception that
the plaintiff had taken it upon himself to ‘‘set up'' the
employees implicated in the investigation, and reduced
the associated hostility. Furthermore, the defendants
took no action to counsel or otherwise address any of
the supposedly hostile employees about their unreasonable
anger toward the plaintiff. The state had promulgated
a ‘‘ ‘zero tolerance policy' '' for potential violence
in the workplace, which included mandatory training
and counseling for employees who threaten physical
violence. Despite this policy, the defendants did not
provide, or even suggest, counseling for the hostile
employees. Richens acknowledged that they could have
removed the hostile employees rather than the plaintiff,
yet the defendants simply concluded that the plaintiff
‘‘ha[d] to'' be removed. Also, the plaintiff asked to know
which employees were hostile toward him, so that he
could avoid them or otherwise protect himself, yet the
defendants refused, telling the plaintiff that ‘‘if an issue
arose [they would] deal with it.'' As discussed previously,
after demoting the plaintiff, the defendants nevertheless
reassigned him to areas where he came in
frequent contact with these purportedly violent employees.
Finally, the plaintiff asked that meetings be held
to address and resolve the hostility. The defendants
refused each of these requests.

II

Next, the defendants claim that there was insufficient
evidence to support the jury's determination that the
plaintiff's right to equal protection had been violated.
Specifically, the defendants contend that the ‘‘jury's
finding [concerning the equal protection counts] is
clearly erroneous because the record contains no evidence
regarding similarly situated employees, a necessary
element to proving an equal protection claim.''
We disagree.

To establish a violation of the equal protection clause
of the fourteenth amendment to the United States constitution,
23 the plaintiff must prove that the state discriminated
against him based on an impermissible,
invidious classification. Washington v. Davis, 426 U.S.
229, 244–45, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) (only
‘‘purposeful discrimination'' violates equal protection
clause); Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.
Ct. 1028, 10 L. Ed. 2d 93 (1963) (‘‘it is only ‘invidious
discrimination' which offends the Constitution''); Williamson
v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,
489, 75 S. Ct. 461, 99 L. Ed. 563 (1955) (‘‘the prohibition
of the Equal Protection Clause goes no further than the
invidious discrimination''). Therefore, the plaintiff must
prove that the action ‘‘had a discriminatory effect and
that it was motivated by a discriminatory purpose. Personnel
Administrator of Massachusetts v. Feeney, 442
U.S. 256 [99 S. Ct. 2282, 60 L. Ed. 2d 870] (1979); Arlington
Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252 [97 S. Ct. 555, 50 L. Ed. 2d 450]
(1977); Washington v. Davis, [supra, 229].'' Wayte v.
United States, 470 U.S. 598, 608–609, 105 S. Ct. 1524,
84 L. Ed. 2d 547 (1985) (applying equal protection clause
to claim that government selectively prosecuted in retaliation
for exercise of first amendment right to freedom
of speech). Put another way, the plaintiff must establish
that he, ‘‘compared with others similarly situated, was
selectively treated . . . and . . . that such selective
treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the
exercise of constitutional rights, or malicious or bad
faith intent to injure a person.'' (Internal quotation
marks omitted.) Schnabel v. Tyler, 230 Conn. 735, 762,
646 A.2d 152 (1994).

As these principles indicate, the defendants are correct
in asserting that the plaintiff was required to introduce
evidence establishing a discriminatory effect, in addition to a discriminatory purpose. We disagree, however,
with the defendants' assertion that the plaintiff
has failed to produce such evidence. As stated in part
I of this opinion, and as the jury reasonably found; see
footnote 16 of this opinion; the permissible government
objective claimed by the defendants was pretextual.
The impermissible distinction drawn by the defendants
in their treatment of the plaintiff was his attempt to
exercise his first amendment right to freedom of
speech, which is an invidious, unconstitutional distinction
to draw. See Schnabel v. Tyler, supra, 230 Conn.
762 (‘‘‘intent to inhibit or punish the exercise of constitutional
rights' '' impermissible as government objective).
The defendants do not, understandably, point to any
evidence that all or most of the airport employees were
also subject to the same type of malicious or degrading
conduct. Thus, in the absence of any evidence to the
contrary, the jury was entitled to draw the reasonable
inference that other, similarly situated employees
would have been differently treated. Therefore, in the
absence of a claim by the defendants that the plaintiff
was simply one of many employees against whom they
had sought retaliation for his legitimate speech, and in
the face of ample evidence that he had been so targeted,
the jury reasonably could infer that he had been improperly
and selectively treated as compared to others similarly
situated. As the plaintiff correctly observes, he
was not bound to demonstrate invidious discrimination
by introducing direct evidence of similarly situated persons
who had been treated differently. Rather, a litigant
may, and often must, utilize circumstantial evidence
to establish the elements of invidious discrimination,
which may, in fact, have more probative value. ‘‘As this
court has stated on numerous occasions, there is no
legal distinction between direct and circumstantial evidence
so far as probative [value] is concerned.'' (Internal
quotation marks omitted.) State v. Brown, 199 Conn.
14, 22, 505 A.2d 690 (1986).

III

Next, we address the defendants' claim that the trial
court improperly found that they were not entitled to
qualified immunity in its ruling on their motion for a
directed verdict. The defendants argue that ‘‘reasonable
persons in [their] situation would not have known that
the plaintiff's statements were protected by the first
amendment,'' or that their actions against the plaintiff
‘‘would violate his first amendment or equal protection
rights.'' More specifically, the defendants argue that
because their actions against the plaintiff were motivated
by a desire to ‘‘quell the turmoil in the workplace,''
rather than to retaliate against the plaintiff for his
speech, and because they did not know that the plaintiff's
speech involved airport security, reasonable persons
in their position could not have known that their
actions were unconstitutional. Thus, the defendants'
contentions rest on those two factual premises. We disagree with the defendants' argument.

It is well settled that ‘‘government officials performing
discretionary functions, generally are shielded
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have
known. See Procunier v. Navarette, 434 U.S. 555, 565
[98 S. Ct. 855, 55 L. Ed. 2d 24] (1978); Wood v. Strickland,
[420 U.S. 308, 322, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975)].''
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,
73 L. Ed. 2d 396 (1982). The defendants' factual premises
concerning their actions, however, are simply
unsupported by the record. First, as discussed previously
in this opinion, the jury reasonably found that
the defendants demoted and reassigned the plaintiff in
reaction to the exercise of his right to freedom of
speech, not out of their desire to prevent disruption in
the workplace. See footnote 16 of this opinion and the
accompanying text. Second, the record establishes
unequivocally that the defendants were each aware of
the airport security concerns implicated in the police
investigation. Robert reflected those concerns verbally,
and Richens and Carterud were each aware of the location
of the plaintiff's office relative to the operations
area and the public area. Each of the defendants also
was aware that the plaintiff's office contained the key
bank, holding many high security keys to the airport.
Because the defendants' factual premises are flawed,
the legal contentions that rest on those premises must
fail as well.

IV

Finally, the defendants argue that the jury's award
of punitive damages against Robert was both unsupported
by evidence of his ‘‘personal involvement'' in
the action taken against the plaintiff, and inconsistent
with the jury's determination that Robert was not liable
for compensatory damages. Wedecline to address these
claims because they were not raised before the trial
court. See footnote 16 of this opinion.24

* * *

Click the case caption above for the full text of the Court's opinion.